A Will deals with the distribution of your assets when you die. This document is very important and should be drafted by an appropriately qualified legal practitioner. You should also remember that  your Will can only distribute assets that you own at the date of death.

However, there are many assets that people own which are not dealt with by your Will.

Jointly owned assets

In the event an asset is jointly owned, upon death of one of the owners, the asset would be automatically passed to the surviving owner(s). A good example of this is a residence jointly owned by a husband and wife, or a jointly owned bank account.

If you want to own an asset with another person, but pass your share through your own Will, then you would need to own that asset as Tenants-in-Common rather than Joint Tenants. In the case of the former, you have a defined share of the asset.

Superannuation

A common misconception is to include clauses in your Will instructing the payment of your superannuation benefits to certain beneficiaries. Such instructions are generally not valid, as it is the trustee of your superannuation fund who decides where benefits are paid.

To control where your superannuation is paid after your death, you need to complete a binding death benefit nomination and lodge it with your superannuation fund. For public offer superannuation funds, these nominations lapse after three years and must be renewed. Self-managed super funds (SMSFs) are able to execute non-lapsing binding death benefit nominations, which can be advantageous should you suffer incapacity.

Death benefit nominations can only be made in favour of your dependents, or to the executor of your estate (who is referred to as your “Legal Personal Representative”).

Trusts                     

Similar to superannuation, assets owned by your family trust are not estate assets and cannot be dealt with by your Will.

Some of the traps with trusts include the impact of unpaid beneficiary entitlements shifting value to an estate unexpectedly, as well as debts owing to family trusts dissipating a deceased estate.  Involving your accountant in your estate planning deliberations can be a sensible approach.

Specialist advice is warranted when you have assets held in structures, as the effective transfer of control of such entities is also important; particularly if a business is involved.

Incapacity

While estate planning generally focuses on what should occur when a person dies, it is also important to consider who would control and administer assets should you suffer incapacity.  Executing an enduring power of attorney can assist in the smooth management of your affairs in the event of incapacity. There are different enduring power of attorney documents for financial, medical and guardianship.

Review your plans

While it is often more exciting to focus on the wealth accumulation side of your finances, spending time contemplating the final distribution of your estate is not only important, but can leave a lasting legacy to your family and the community when you are no longer around.

We suggest reviewing your estate planning arrangements at least every five years to ensure they remain appropriate to your financial arrangements and are in line with your final wishes. Your financial planner can also assist you to review these arrangements.

The information provided above is general information only and individuals should seek specialised advice from a qualified financial adviser. Please contact Hewison Private Wealth for more information.